[EL] ALEC Boycott

Thu Apr 12 13:14:32 PDT 2012

Any organization or association of people has  to have some mechanism for 
decision making. Hopefully you would agree that a  family is made up of 
people. The parents decide and if some of the children  disagree, it does not 
mean that they aren't people.  It also does not make  the decision illegitimate 
since it is not unanimous, as you suggest. And whether  it is the purchase 
of hamburgers or the decision to put up a candidates yard  sign in the front 
yard, it remains that it is the family's decision.

    So the bottom line is I think you are actually not  making a point 
regarding political speech or even corporations but are really  challenging 
either the legitimacy of delegating group decisionmaking  to certain people in 
the group or the legitimacy of group decisions that are not  unanimous among 
the group. It seems to me that it is impossible for a group to  operate if 
they could not function in the way you condemn.  Jim Bopp

In a message dated 4/12/2012 3:57:36 P.M. Eastern Daylight Time,  
KFeng at CommonCause.org writes:

This  is where the “corporations = people” argument breaks down.   The  
decision to join ALEC is being made by “corporate owners  and managers,” 
maybe by the relevant government relations staff, but certainly  not through 
consultation with all employees or stakeholders. So the decision  to join ALEC 
is made by a few, but not all the people, who make up the  corporation.  You 
can imagine the conversation in McDonald’s going  something like this: 
VP  of Media and Communication: “Wow! We are getting a lot of flack for 
being  associated with ALEC and this “Stand your Ground” legislation.  Who 
made  the decision to join ALEC?”  
VP  of Government Relations: “I did.  It made sense at the time and CEO Bob 
 approved it.” 
CEO  Bob: “I did approve this, but we can’t be associated with this 
shooting of  Trayvon Martin.  Whatever we were getting out of ALEC, this is too 
hot to  touch.”  (no coffee pun intended). 
VP  of GR: “You’re right.  I’ll start the work with Legal to pull  out.” 
VP  of MC: “I’ll start the damage control.” 
Even  if the conversation involved two dozen more people at McD, it still 
does not  reflect all the people who work, invest, or eat there.  So “
corporate  speech,” whether to buy an ad, participate in ALEC, or pull out of ALEC, 
 involves a few decision-makers speaking without consultation or approval 
of  the entire entity.  That kind of decision making structure works when the 
 for-profit corporation is engaged in economic activity for which is was  
created – making hamburgers, say.  It becomes much muddier when the  
corporation is engaged in (or associated with) political speech that  represents the 
boss’s preference or a few people’s preferences but not the  “corporation’
s.”   
-Kathay 

From:  law-election-bounces at department-lists.uci.edu  
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of  JBoppjr at aol.com
Sent: Thursday, April 12, 2012 12:10  PM
To: schmitt.mark at gmail.com
Cc:  law-election at department-lists.uci.edu
Subject: Re: [EL] ALEC  Boycott

But this does  nothing to support your categorical (and false)  statement:

"No corporation  gives to ALEC because it "does good work" in the  
abstract."

. Of course  there are conservative, pro-free enterprise corporate owners 
and  managers who would give to ALEC because they like the pro-free 
enterprise  conservative legislation that ALEC proposes.   

Jim  Bopp

In a message dated  4/12/2012 2:44:02 P.M. Eastern Daylight Time, 
schmitt.mark at gmail.com  writes:

Let's compare the  fundraising pitches of the Brennan Center and ALEC. 

Here's Brennan,  from the "donate" page of its web site:

"The Brennan Center is the  best organization to push for deep reforms. We 
are independent. We get  results. We base our advocacy on facts, not 
partisan talking points. We need  your help."

Compare ALEC. Instead of asking for plain old no-strings  donations, ALEC 
invites corporate contributors to become "private-sector  members" at several 
levels, with specific benefits at each level, from  "Washington Circle" to 
"Jefferson Circle." Here's the pitch:

"One of  ALEC’s greatest strengths is the public-private partnership. ALEC 
provides  the private sector with an unparalleled opportunity to have its 
voice heard,  and its perspective appreciated, by the legislative members."

Those  are totally different approaches to donors. It makes it very 
explicit that  ALEC is a lobbying network selling access, not just "good work." 
ALEC also  engages in political speech (such as promotion of Stand Your 
Ground), and  the boycott made the companies question whether it was political 
speech they  wanted to be associated with. Apparently many of them  didn't.

Mark  Schmitt
Senior Fellow, _The Roosevelt  Institute_ (http://www.newdeal20.org/) 
202/246-2350
gchat or Skype: schmitt.mark
_ at mschmitt9_ (https://twitter.com/#!/mschmitt9) 

On 4/12/2012  9:23 AM, _JBoppjr at aol.com_ (mailto:JBoppjr at aol.com)  wrote:   

Why would someone  say this obviously erroneous statement:

"No corporation  gives to ALEC because it "does good work" in the  
abstract."

Of course they  would.  ALEC is pro free enterprise and most companies like 
the free  enterprise system.  There are, of course, conservative 
businessmen out  there who like conservative policies and  legislators..

I assume the  corporations that give to the Brenan Center also do so 
because they do "good  works" in the view of the donor.  Jim Bopp

In a message  dated 4/11/2012 10:32:28 P.M. Eastern Daylight Time, 
_schmitt.mark at gmail.com_ (mailto:schmitt.mark at gmail.com)   writes:

The  problem with that theory is that ALEC isn't a public good. Corporate  
giving to ALEC is entirely transactional -- companies give because  
corporate sponsors get X number of seats at the annual conference, and  
opportunities to weigh in on some of the task forces. If you don't give,  you lose that 
access. No corporation gives to ALEC because it "does good  work" in the 
abstract. 

To some extent, in demonizing ALEC, the  left has exaggerated what it is. 
It's just a network for lobbyists  connected to a network of legislators.  

Mark  Schmitt
Senior Fellow, _The Roosevelt  Institute_ (http://www.newdeal20.org/) 
202/246-2350
gchat or Skype: schmitt.mark
_ at mschmitt9_ (https://twitter.com/#!/mschmitt9) 

On  4/11/2012 4:36 PM, Volokh, Eugene wrote:  

It’s possible, but this might also be a classic public goods situation –  
even if a corporation thinks ALEC is doing superb work, the marginal  effect 
of that corporation’s withdrawal of its contribution is likely to  be 
fairly modest, so that the corporation might stop  contributing. 

From:  _law-election-bounces at department-lists.uci.edu_ 
(mailto:law-election-bounces at department-lists.uci.edu)   
[_mailto:law-election-bounces at department-lists.uci.edu_ (mailto:law-election-bounces at department-lists.uci.edu) ]  
On Behalf Of Mark Schmitt
Sent: Wednesday, April 11, 2012  12:50 PM
To: _law-election at department-lists.uci.edu_ 
(mailto:law-election at department-lists.uci.edu) 
Subject:  Re: [EL] ALEC Boycott

It's interesting how quickly some of the  corporations have abandoned ALEC 
based on a very small boycott. That  suggests to me that the corporations 
didn't feel they were getting much  value from their involvement with ALEC, or 
not enough to offset the very  small cost of a little of bad publicity in a 
limited community. A boycott  effort by colorofchange.org is simply not 
going to prevent a company from  doing something it really wants to do.

Most likely, no one at a  particularly high level of the companies had even 
been involved in the  decision to fund ALEC. It was probably a decision 
made by the company's DC  office, as a way of ensuring access to the ALEC 
member legislators, rather  than an act of political speech. 

The effect of the boycott, then  is to make the corporation notice what its 
lobbyists are doing and ask  whether it makes any sense. That seems like a 
healthy development.  

On 4/10/2012 12:15 PM, Rick Hasen wrote:  
These are all excellent questions, and I'd recommend _Economic Boycotts as 
Harassment: The Threat to First  Amendment Protected Speech in the Aftermath 
of Doe v.  Reed_ 
(http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=2776&context=llr) 

On 4/10/2012 8:57 AM, Smith, Brad wrote:   
“While  I’ve heard some conservatives saying that political activism from 
liberals  to get groups to not support ALEC is intimidation, it looks to me 
like_ protected First  Amendment boycott-like activity_ 
(http://electionlawblog.org/?p=31462) .” 
Of  course, it can be both. One question we are going to have to ask 
ourselves  is whether we want the meanness of the society that is shaping up. 
While  boycotts have some honorable history and can be a useful tool, nobody  
really much wants to live in a boycott world. Labor law has long  prohibited 
secondary boycotts, largely for that reason.   
We’ll  also have to address more honestly whether the government has a 
compelling  interest in forcing people to disclose activity that may subject 
them to  boycotts and other forms of harassment. Notice that those boycotting 
and  organizing boycotts are not required to disclose themselves, neither 
their  identity nor their sources of financing.  
Justice  Scalia has voiced concern that a world without compulsory 
disclosure would  be particularly nasty. I think he’s got it backwards – compulsory 
 disclosure, supported primarily because it enables opponents of speech to  
engage in boycotts and other harassment, is creating an increasing nasty  
political environment.  
One  can certainly see something as protected First Amendment activity 
while  recognizing it as intimidation as well. And that raises the question as 
to  what interest the government has in enabling  intimidation. 

Bradley  A. Smith 
Josiah  H. Blackmore II/Shirley M. Nault  
Designated  Professor of Law 
Capital  University Law School 
303  East Broad Street 
Columbus,  OH 43215 
(614)  236-6317 
_bsmith at law.capital.edu_ (mailto:bsmith at law.capital.edu)  
_http://www.law.capital.edu/faculty/bios/bsmith.asp_ 
(http://www.law.capital.edu/faculty/bios/bsmith.asp) 

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